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Zhou v. He


June 6, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1316-04.

Per curiam.


Submitted May 19, 2008

Before Judges Graves, Sabatino and Alvarez.

After a multi-day trial, the Family Part ordered the entry of final terms of divorce between plaintiff Shaunpen Zhou ("the father") and defendant Shufen He ("the mother") on July 26, 2007. The father now appeals various aspects of the final order relating to custody, child support, equitable distribution, and the award of partial counsel fees to the mother. The mother cross-appeals the fee award as insufficient. We affirm.

The parties married in China on May 11, 1988. Their sole child is a son, who was born in January 1997. The father has a masters degree in computer science and the mother has an associates degree in statistics. Both parties are employed. Before separating, the parties lived with their son in a rented apartment.

In 1998, in contemplation of divorce, the father wrote the mother a check for slightly more than $35,000, with the intent of settling the division of marital assets. The mother cashed the check, but did not sign a corresponding separation agreement that had been drafted by the father. Soon thereafter, she sent her parents in Shanghai $30,000, which they used to buy a condominium there.

The mother filed a complaint for divorce in September 1999, but withdrew it two months later as the parties attempted a reconciliation. The parties were unable, however, to repair their relationship. In September 2001, the father drafted another separation agreement that purported to divide the assets in a joint account. Neither party signed this agreement, but from that point on they kept their respective earnings separate.

Consequently, in January 2004 the father filed his own divorce complaint.

Meanwhile, the mother bought a townhouse in Piscataway, where she moved with the son. The court designated her the parent of primary residence, pendente lite, with the parties sharing joint legal custody. A guardian ad litem for the son recommended that the father have no overnight visits until he obtained better living quarters. Nonetheless, the court granted the father one overnight visit weekly, also pendente lite.

After a default hearing in May 2005, at which both parties appeared, the father submitted a draft final judgment to the court. The father's draft shifted primary residential custody to him, even though no such transfer had been approved at the default hearing. The father improperly failed to copy the mother on his submission. The court initially did not recognize that oversight, and executed the father's draft. Upon receiving a copy of the entered judgment, the mother retained counsel and moved to vacate it. The court subsequently amended the judgment in November 2005, reinstating the pendente lite custody arrangement and reserving various financial issues for trial. The father prematurely appealed that ruling. We dismissed the appeal as interlocutory, and remanded the matter to be completed in the Family Part. See Zhou v. He, No. A-1366-05 (App. Div. May 31, 2006) (slip op. at 6).

The remaining issues were tried on four intermittent trial days before Judge Michael Toto between December 2006 and March 2007. The mother was represented at trial by counsel and the father was pro se. The court heard testimony from both parties and also interviewed their son in camera, pursuant to Rule 5:8-6. Following post-trial submissions by both parties, Judge Toto issued a written decision on May 30, 2007.

Rejecting the father's claim that he was better suited to serve as the son's main caretaker, Judge Toto continued primary residential custody with the mother. However, the judge awarded the father expanded parenting time, with alternate weekends from Friday afternoon to Monday morning, and overnights every other Wednesday. In this regard, the judge made the following pertinent findings:

I had the benefit of interviewing [the parties' son] who is an extremely intelligent, well-spoken child. He enjoys both parties' cooking, plays sports with his father, attends museums, and enjoys the magazines at his father's house (scientific, nature, astrology and geology). He has several pets at his father's house (fish and frog). [He] indicated that his friends do come over to his mother's house, but not his father's, but [he] enjoys going to his father's home. He explained some of the things he does with his mother and some of the things he does with his father.

It appears that this child has been well-cared for by both [the father] and [the mother] at various times during this relationship. Clearly, [he] enjoys being with both his parents and benefits from what both are able to offer. He also enjoys living with his mother. The mother has certainly enrolled him in appropriate classes and extracurricular activities, which he enjoys. She ensures his homework is complete. This child is doing very well in school. The child has been living primarily with his mother since March 2004 and for more than three years.

The [father] claims that he keeps [his son] busy with scientific magazines, hikes and music when he is with him. He claims that when [his son] is with the [mother] that he watches cartoons and plays with Pokemon cards.

The judge concluded:

The [mother] has been the primary caretaker for [her son] since March 2004. I have reviewed the testimony and the evidence, including J-1 which is the Guardian ad Litem's report. [The parties' son] is doing well in the current environment. It would not be in the child's best interest to remove the [mother] as parent of primary residence.

Both parties seek primary physical custody of [their son]. The statutory factors for awarding custody in a divorce action are set forth under N.J.S.A. 9:2-4 and include, but are not limited to, the stability of the home environment offered, the needs of the child, preference of the child, the relationship between the child and the parent, the child's education, the fitness of the parents, and employment responsibilities. Both parties appear to be dedicated to [their son's] best interest and both parties have positive influences on their son. The parties do need to learn to communicate without animosity to assure that [their son] will benefit by the positive influences that both parties have to offer and not be damaged by the problems between them.

The [c]court is guided by the "best interest" of a child in determination of custody and parenting time. Based on the testimony, documents, evidence, and my interview with [this child], I believe it would be in the best interest that the parties have joint custody of [their son] with the [mother] as the primary residential parent. Furthermore, I find that the [father] should have additional parenting time with [his son].

The judge declined to order the equitable distribution of any property. He found that the parties' prior informal divisions of assets were "fair and equitable." The judge specifically rejected the father's claim that he was entitled to an interest in the Shanghai condominium. He found that the mother had gifted to her parents the funds they used to purchase it, which came out of the joint assets that the parties voluntarily divided in 1998. The judge also rejected the father's claim that he had an interest in the mother's Piscataway townhouse.

Finally, the judge ordered the father to pay child support, pursuant to the State-mandated guidelines. In addition, the judge addressed incidental issues such as medical coverage, future college expenses, and tax deductions.*fn1

After Judge Toto issued his written decision, the parties disputed the father's salary for purposes of calculating child support. To settle the dispute, the judge ordered each spouse to produce his or her 2006 tax filings and W-2 forms. These documents revealed that the father's 2006 state wages were $71,673.04, and the mother's 2006 state wages were $61,631.50. The judge applied these figures to a child support worksheet. Factoring in the father's allotted overnight parenting time, the worksheet calculations yielded a weekly child support figure of $105. The judge included that sum in a final order dated July 26, 2007.

The final order also granted the mother counsel fees of $3,250, partially compensating her for the approximate $50,000 she expended in the litigation. The judge found that this limited fee award was justified "[i]n light of the fact that the [father] submitted an inaccurate Judgment of Divorce which necessitated the [mother] incurring legal fees and expenses to return to [c]court to correct the [j]udgment . . . and return custody of the minor child." The judge rejected the mother's argument that higher fees were warranted by the father's decision to contest custody and other issues at trial, noting that he had the right to do so.

On his pro se appeal, the father substantively argues that the court erred in (1) awarding primary residential custody to the mother; (2) calculating child support based upon his reported income, contending that his actual salary is only $55,000; (3) finding no basis for equitable distribution; and (4) awarding any counsel fees to the mother. The father also complains about various procedures in the trial court. The mother, also pro se at this point, cross-appeals the counsel fee award and seeks a higher sum.

The scope of review of the Family Part's factual findings is limited. This court recognizes "the family courts' special jurisdiction and expertise in family matters," and thus affords substantial deference to the factual findings and conclusions of family court judges, provided they are supported by the evidence. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Likewise, a family court judge's credibility determinations are also accorded great weight on appeal, given the judge's feel of the case based upon his or her ability to see and hear the witnesses. Id. at 411-12; Pascale v. Pascale, 113 N.J. 20, 33 (1988). With respect to custody in particular, the conclusions of Family Part judges "are entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976); see also Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958).

Given these considerations, this court should affirm the trial court's factual findings so long as they are "supported by adequate, substantial and credible evidence" in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Having reviewed the entire record and duly considered all of the parties' arguments on appeal, we are satisfied that the judge's findings are indeed supported by such substantial evidence and comport with the applicable law.

We therefore affirm the final determinations of the trial court, substantially for the cogent reasons expressed in Judge Toto's written decision of May 30, 2007, as amplified by his ensuing calculations of child support and counsel fees. We add only a few comments.

With respect to the parties' son, the court and both parties correctly identified that the applicable legal standard in child custody issues is the "best interests of the child." N.J.S.A. 9:2-4; Sacharow v. Sacharow, 177 N.J. 62, 80 (2003) (finding that, in custody disputes, "the sole benchmark is the best interests of the child"). In making this determination, courts are guided by statutorily prescribed factors, including, among others, the stability of the home environment, the needs of the child, the child's relationship with each parent, and the fitness of the parents. N.J.S.A. 9:2-4.

Another statutorily prescribed factor for courts to consider is the preference of the child, when that child is old enough to make an informed decision. Ibid.; see also Wilke v. Culp, 196 N.J. Super. 487, 498 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985). While a child's stated preference is given consideration, it is not the sole dispositive factor, since a child may often be subject to pressures by one or both of the parents. Wilke, supra, 196 N.J. Super. at 498.

In the present case, after weighing these factors, the judge determined that it would be in the son's best interest to preserve the status quo of the mother as the primary residential parent, an arrangement that the judge deemed "a more stable environment." This determination has adequate support in the record. The judge took into account the child's stability in the present living arrangements and the fact that he was excelling in both school and extracurricular activities.

The judge's interview with the son was particularly relevant, in that it contradicted many of the accusations traded by the parties. Contrary to the father's predictions, the child did not make any negative statements about his mother's treatment of him, nor did he express any desire to change his living arrangements to live primarily with his father. The child found positive things to say about both parents, and, from what he told the judge, he enjoys the time he spends with both of his parents and appreciates the different experiences and perspectives they provide him.

The father does not agree with the child custody decision and argues that the judge must have been biased, because no unbiased weighing of the evidence could possibly have favored the mother. This is so, he contends, because he has "much stronger advantages" over the mother and has no "unfavorable factor." In light of the son's own responses to the judge in chambers, the court had ample reason to discount the father's self-serving assessments.

Contrary to the father's argument, the fact that the judge did not ask the parties' son some of the questions the father wanted asked is not a ground for reversal. See R. 5:8-6. The father submitted fifty questions that he wanted the judge to ask his son, some of which the judge did not ask. It seems fairly obvious why the judge chose not to directly ask the son who he preferred to live with; such a question would have put the child in a difficult position, given that he clearly loves both of his parents and did not wish to speak against either of them. The judge was attuned to the effects such direct questions could have on the minor. In addition, many of the questions the father claims were not asked, were in fact asked by the judge, albeit in a more sensitive, less direct manner.*fn2

With respect to child support, Judge Toto properly utilized the State guidelines and corresponding worksheet. See R. 5:6A; Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2307 (2008). Income tax returns are commonly utilized to determine a parent's gross income for purposes of support calculations. Ibid.; see also Lepis v. Lepis, 83 N.J. 139, 157-58 (1980); Tash v. Tash, 353 N.J. Super. 94, 98-99 (App. Div. 2002). The judge was not obligated to substitute the lower salary figure reflected in the uncertified e-mail the father tendered from his employer's payroll manager. On the whole, the court's support award is adequately supported by substantial, credible evidence, and we sustain it. Elkin v. Sabo, 310 N.J. Super. 462, 467-68 (App. Div. 1998).

Likewise, we discern no misapplication of law or patent inequity in Judge Toto's ruling on equitable distribution. To the contrary, the judge properly exercised his considerable discretion on this subject. See Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div. 1978).

The judge had ample reason to ratify, as fair and equitable, the parties' mutual division of assets they made in 1998 and 2001, even though the parties never signed the formal agreements the father had drafted when those funds were divided. See Brandenburg v. Brandenburg, 83 N.J. 198, 208 (1980). The father voluntarily wrote the wife the check in 1998 for over $35,000, and he did not demand that she return the money when he drafted a second separation agreement in 2001. The record reflects that after 2001 the parties kept their earnings and assets separate. The judge was not required to unravel the prior mutual division of their marital assets.

The judge also had sufficient grounds to reject the father's attempts to share in the value of the Shanghai condominium and the Piscataway townhouse. In particular, we defer to the judge's rejection of the father's claim that the wife had sent the condominium purchase money to her parents so that they could buy the parties a vacation home, given that the parties were then in the midst of preparing for divorce. The judge also had a sound basis to allow the wife to retain sole title to the townhouse, as the record was bereft of proof that the father had participated, financially or otherwise, in its acquisition. Meanwhile, the father was allowed to retain the full value of his pension, his car and other miscellaneous assets. None of this was demonstrated to be unfair.

The modest award of partial counsel fees to the mother was well within the court's sound discretion. See Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001); Williams v. Williams, 59 N.J. 229, 233 (1971). We perceive no reason to adjust the fee award up, as the mother requests, or down, as the father advocates. The parties' incomes are relatively close, and neither side prevailed completely at trial. Moreover, no bad faith was demonstrated, aside from the father's failure to copy the mother on his original proposed form of judgment and his insertion therein of an unapproved change of custody.

Lastly, we reject as without merit each of the father's contentions that the trial court proceedings were unfair. R. 2:11-3(e)(1)(E). We suspect that all or most of these criticisms derive from the father's misunderstanding of the legal system, perhaps due to language difficulties. For example, there was absolutely nothing wrong or unconventional in the mother's counsel including proposed findings of fact and conclusions of law in her written summation, or in the court's adoption of some of those findings in its ultimate ruling. See, e.g., Mizrahi v. Cannon, 375 N.J. Super. 221, 233 (App. Div. 2005); N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 524 (App. Div. 2003). In any event, the criticisms are rejected in all respects.


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